CITATION: Corporation of the City of Cornwall v. Cornwall Professional Fire Fighters’ Assn., 2011 ONSC 7359
DIVISIONAL COURT FILE NO.: 324/11
DATE: 20111209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND SWINTON JJ.
BETWEEN:
CORPORATION OF THE CITY OF CORNWALL
Applicant
– and –
CORNWALL PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION
Respondent
Frank Cesario, for the Applicant
Christopher Rootham, for the Respondent
HEARD at Toronto: December 9, 2011
JENNINGS J. (ORALLY)
[1] The City applies for judicial review seeking to quash the award of Arbitrator Stout dated April 8, 2011, which held that the grievor firefighter Barry Cox earned his full year’s vacation days for the year in which he retired, although he retired at the end of April in that year.
FACTS
[2] Firefighter Cox had been employed for twenty-five years with the department. By Article 4.07 of the Collective Agreement between the parties, he was accordingly entitled to a vacation of six weeks per year. By April 6, 2010, Cox had applied for and had been granted six weeks vacation for 2010, the vacation to end on April 25, 2010. On April 16, 2010, Cox provided to the City notice of his retirement, effective April 30, 2010. By that time he had taken five weeks of vacation.
[3] The City took the position that Cox was only entitled to two weeks vacation for the four months of 2010 during which he had or would work, prorating his entitlement of six weeks vacation to the one third of the year that had elapsed prior to his retirement. The City cancelled the last week of his proposed vacation, and sought recovery of salary paid for the “extra” three weeks of vacation that he had taken.
[4] Article 4.11 of the Collective Agreement provided “An employee terminating his employment at any time in his vacation year shall be entitled to a proportionate payment of salary in lieu of any unused vacation.”
ISSUES
[5] The City took the position that Article 4.11 entitled it to prorate the vacation allowance of six weeks in accordance with the time in the year worked before retirement. The Association contended that Article 4.11 provided for proration of payment only for unused earned vacation time.
[6] We accept the submissions of the parties that the standard of review is reasonableness.
ANALYSIS
[7] Vacation pay in the year of retirement had been a hot issue between the parties for a number of years. To simplify, the City consistently wanted proration of vacation to time worked in the year of retirement and the Association had consistently insisted that entitlement to vacation accrued at the beginning of the calendar year. That position was recognized in a previous arbitration award delivered in 1999. Following further negotiations in 2009, Arbitrator Starkman in an interest arbitration, accepted the City’s position with respect to the existing Article 4.11, and replaced it with new language drafted by the City. That is the article that was before Arbitrator Stout.
[8] On the grievance, the City submitted that the language it had employed in Article 4.11 permitted proration of the vacation entitlement to time worked prior to retirement.
[9] The Arbitrator held that that the language of Article 4.11 was clear and unambiguous. Referring to it in paragraph 36 of his reasons and dealing with an employee who had terminated within the vacation year, the Arbitrator held “the language is straightforward, providing that such an employee is entitled to a proportionate payment of salary in lieu of any unused earned vacation.”
[10] He held that Cox had no unused earned vacation and was entitled to no payment in lieu. He also held that Article 4.11 did not speak to proration of anything other than unused earned vacation entitlement. On the plain language of Article 4.11, that conclusion was reasonable.
[11] The City argues that Article 4.11 is patently, or latently ambiguous. The Arbitrator found that it was not and that he could not look to extraneous matters to determine the intention of the parties.
[12] In our opinion, that also was a reasonable conclusion. Even if the history of negotiations was relevant, it would not assist the applicant. The addition of Article 4.11, in words drafted by the City, went some distance towards addressing the City’s concern. It gave the City not perhaps half a loaf, but at least some of what the City had been seeking, that is, total proration. It bettered the City’s position from what it had previously been. Had the City believed that the interest arbitration gave it more, it could easily have said so in the wording of the proposed addition to the Collective Agreement. That did not happen.
[13] While the City argued that the Arbitrator ought not to have considered the 1999 award, it remained appropriate for the Arbitrator to look to a previous award interpreting the meaning of earned vacation under the Collective Agreement between the parties.
[14] The application must be dismissed.
COSTS
[15] Costs fixed on consent at $5,000.00, payable to the Association forthwith.
JENNINGS J.
DAMBROT J.
SWINTON J.
Date of Reasons for Judgment: December 9, 2011
Date of Release: December 15, 2011
CITATION: Corporation of the City of Cornwall v. Cornwall Professional Fire Fighters’ Assn., 2011 ONSC 7359
DIVISIONAL COURT FILE NO.: 324/11
DATE: 20111209
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND SWINTON JJ.
BETWEEN:
CORPORATION OF THE CITY OF CORNWALL
Applicant
– and –
CORNWALL PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: December 9, 2011
Date of Release: December 15, 2011